Rates for Interstate Inmate Calling Services, 68416-68432 [2022-24597]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 87, Number 219 (Tuesday, November 15, 2022)]
[Proposed Rules]
[Pages 68416-68432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24597]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WC Docket No. 12-375, FCC 22-76; FR ID 111465]


Rates for Interstate Inmate Calling Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks to obtain detailed 
comment to enable it to make further progress toward ensuring that the 
rates, charges, and practices for and in connection with interstate and 
international inmate calling services meet applicable statutory 
standard. In this document FCC 22-76, the Commission seeks comment on 
whether to adopt a form of enterprise registration for IP CTS, whether 
to increase inmate services providers' TRS-related access obligations 
to include providing access to advanced forms of TRS in jurisdictions 
with an average daily population of less than 50 incarcerated persons, 
and whether inmate calling services providers should disclose their 
charges in an accessible format for disabled incarcerated people. The 
Commission also seeks comment on whether it should refine its rules 
concerning the treatment of unused

[[Page 68417]]

funds in accounts that consumers use to pay for interstate and 
international inmate calling services and related ancillary services 
charges, on how it might improve its consumer disclosure rules, and on 
how the Commission should use the responses to the Third Mandatory Data 
Collection to establish reasonable, permanent caps on rates and 
ancillary service charges for interstate and international calling 
services for incarcerated people. The Commission seeks further comment 
on whether to allow inmate calling services providers to offer pilot 
programs that offer consumers the ability to purchase inmate calling 
services under alternative pricing structures. Last, the Commission 
also seeks comment on whether it should expand its definitions of 
``Jail'' and ``Prison'' and on how its proposals may promote or inhibit 
advances in diversity, equity, inclusion, and accessibility.

DATES: Comments are due on or before December 15, 2022; and reply 
comments are due on or before January 17, 2023.

ADDRESSES: You may submit comments, identified by WC Docket No. 12-375, 
by either of the following methods:
     Federal Communications Commission's Website: https://www.fcc.gov/ecfs/filings. Follow the instructions for submitting 
comments.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. Currently, the 
Commission does not accept any hand delivered or messenger delivered 
filings as a temporary measure taken to help protect the health and 
safety of individuals, and to mitigate the transmission of COVID-19. 
All filings must be addressed to the Commission's Secretary, Office of 
the Secretary, Federal Communications Commission.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the Commission's Sixth 
Further Notice of Proposed Rulemaking, FCC 22-76 at: https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf.

FOR FURTHER INFORMATION CONTACT: Michael Scott, Disability Rights 
Office of the Consumer and Governmental Affairs Bureau, at (202) 418-
1264 or via email at [email protected] regarding portions of the 
Sixth Further Notice of Proposed Rulemaking relating specifically to 
the provision of communications services for incarcerated people with 
hearing and speech disabilities and Jennifer Best Vickers, Pricing 
Policy Division of the Wireline Communications Bureau, at (202) 418-
1526 or via email at [email protected] regarding other portions 
of the Sixth Further Notice of Proposed Rulemaking.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Sixth 
Further Notice of Proposed Rulemaking, document FCC 22-76, released 
September 30, 2022. This summary is based on the public redacted 
version of document FCC 22-76, the full text of which can be obtained 
from the following internet address: https://docs.fcc.gov/public/attachments/FCC-22-76A1.pdf. To request materials in accessible formats 
for people with disabilities (Braille, large print, electronic files, 
audio format), send an email to [email protected], or call the Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-
0432 (TTY).
    This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 47 CFR 
1.1200 et seq. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Sec.  1.1206(b). In proceedings governed by 
Sec.  1.49(f) or for which the Commission has made available a method 
of electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

Synopsis

    1. The ability to make telephone calls is essential to allowing 
incarcerated people to stay connected to their family and loved ones, 
clergy, counsel, and other critical support systems. While unreasonable 
rates, charges, and practices associated with calling services present 
significant barriers to all incarcerated people, the obstacles are much 
larger for those who are deaf, hard of hearing, deaf-blind, or who have 
a speech disability. The Commission refers to this class of people 
generally as incarcerated people with communication disabilities. 
Because functionally equivalent means of communication with the outside 
world are often unavailable to incarcerated people with communication 
disabilities, they are effectively trapped in a prison within a prison. 
Consistent with the Commission's statutory obligations, in document FCC 
22-76, the Commission takes strides to improve access to communications 
services for incarcerated people with communication disabilities.
    2. The Commission has an obligation under section 225 of the 
Communications Act of 1934, as amended (the Act), to ensure those with 
communication disabilities receive service that is functionally 
equivalent to that received by those without such disabilities. This 
obligation supplements and focuses the Commission's obligation under 
section 201(b) of the Act to ensure all people, including incarcerated 
people, have access to calling services under just and reasonable 
rates, terms, and practices. In May 2021, the Commission reaffirmed its 
commitment to ensure that incarcerated people with disabilities have 
access to functionally equivalent telecommunications services. That 
Order also lowered, on an interim basis, the Commission's caps on the 
amounts inmate calling services (ICS) providers serving prisons or 
jails with 1,000 or more incarcerated people may charge for interstate 
calls and capped, for the first time, the providers' charges for 
international calls. To enable the Commission to set permanent, cost-
based interstate and international rate caps for facilities of all 
sizes and to, if appropriate, adjust its caps on ancillary services 
fees, that Order required all

[[Page 68418]]

calling services providers to submit detailed cost data based on 
prescribed allocation methodologies. The Commission also issued an 
accompanying document proposing to expand access to all eligible relay 
services for incarcerated people with communication disabilities and 
seeking comment on a number of other issues, including the methodology 
to be used in setting permanent interstate and international rate caps, 
the need for periodic data collections, and additional reforms to the 
ancillary service charge rules.
    3. The Commission seeks comment on various matters to build on the 
actions it takes today and to obtain additional stakeholder input 
required to implement further reforms for incarcerated people with 
communication disabilities. The Commission seeks additional comment on 
whether to allow enterprise registration for internet Protocol 
Captioned Telephone Service (IP CTS) in carceral settings and how to 
address the special circumstances faced by some inmate calling services 
providers in jurisdictions with average daily populations of fewer than 
50 incarcerated persons. IP CTS is a captioned telephone service in 
which captions are delivered via the internet to an internet Protocol-
enabled device.
    4. The Commission also seeks additional evidence and comment from 
stakeholders to enable further reforms concerning providers' rates, 
charges, and practices in connection with interstate and international 
inmate calling services. First, the Commission seeks comment on 
refining the rules adopted today concerning the treatment of balances 
in inactive accounts. Second, it seeks comment on expanding the breadth 
and scope of the Commission's existing consumer disclosure 
requirements. Third, it asks the stakeholders to update the record on 
certain issues in light of the providers' data collection responses. 
Specifically, the Commission seeks comment on how the Commission should 
use the data to establish just and reasonable permanent caps on 
interstate and international rates and associated ancillary service 
charges consistent with the statute. The Commission invites further 
comment on allowing inmate calling services providers to offer pilot 
programs allowing consumers to purchase calling services under 
alternative pricing structures. Finally, the Commission seeks comment 
on whether it should expand the definitions of ``Jail'' and ``Prison'' 
to ensure that they capture the full universe of confinement facilities 
with residents who may access interstate and international 
communications services, and on how its proposals may promote or 
inhibit digital equity and inclusion.
    5. The Commission expects these actions will bring much-needed 
relief to incarcerated people with communication disabilities by easing 
the obstacles these individuals face in communicating with loved ones. 
At the same time, the Commission expects its other reforms aimed at 
reducing certain charges and curtailing abusive practices to benefit 
all incarcerated people by easing the financial burdens that such 
charges and practices place on the incarcerated and those they call.

Background

    6. The impact that unjust and unreasonable rates, fees, and 
practices have on incarcerated people, as well as the Commission's 
efforts to ameliorate that impact, are well-documented, and need not be 
repeated here.
    7. Communication Disabilities and Calling Services for Incarcerated 
People. Telecommunications Relay Services (TRS) are telephone 
transmission services that provide the ability for an individual who is 
deaf, hard of hearing, deaf-blind or who has a speech disability to 
engage in communication by wire or radio in a manner that is 
functionally equivalent to the ability of a hearing person who does not 
have a speech disability to communicate using voice communication 
services. In 2013, the Commission clarified that section 225 of the Act 
and the Commission's implementing regulations prohibit inmate calling 
services providers from assessing an additional charge for a TRS call, 
in excess of the charge for an equivalent voice inmate calling services 
call. In 2015, the Commission went further, amending its rules to 
prohibit inmate calling services providers from levying or collecting 
any charge at all for a TRS call placed by an incarcerated individual 
using a text telephone (TTY) device. The Commission reasoned that, by 
exempting TRS calls from the fair compensation mandate of section 276 
of the Act, Congress indicated an intent that such calls be provided 
for no charge.
    8. In 2015, the Commission affirmed that the general obligation of 
common carriers to ensure the availability of ``mandatory'' forms of 
TRS--TTY-based TRS and speech-to-speech relay service (STS)--applies to 
inmate calling services providers. TTY-based TRS allows an individual 
with a communication disability to communicate by telephone with 
another party, such as a hearing individual, by using a TTY device to 
send text to a communications assistant (CA) over a circuit-switched 
telephone network. To connect a hearing individual as the other party 
to the call, the CA establishes a separate voice service link with the 
hearing party and converts the TTY user's text to speech. The CA 
listens to the hearing party's voice response and converts that speech 
to text for the TTY user. A TTY is a machine that employs graphic 
communication in the transmission of coded signals through a wire or 
radio communication system. STS allows individuals with speech 
disabilities to communicate with voice telephone users through the use 
of specially trained CAs who understand the speech patterns of persons 
with speech disabilities and can repeat the words spoken by that 
person. This obligation to ensure the availability of TRS also applies 
to providers of interconnected Voice over internet Protocol (VoIP) 
services. However, the Commission did not require those providers to 
provide access to other relay services--Video Relay Service (VRS), 
Captioned Telephone Service (CTS), IP CTS, and internet Protocol Relay 
Service (IP Relay). VRS is a form of TRS that allows people with 
hearing and speech disabilities who use sign language to communicate 
with voice telephone users through video equipment. The video link 
allows the CA to view and interpret the party's signed conversation and 
relay the conversation back and forth with a voice caller. CTS is used 
by persons who can speak but who have difficulty hearing over the 
telephone. Placing a telephone call from a screen-equipped telephone, 
the user can simultaneously listen to the other party to the call and 
read captions of what the other party is saying. IP Relay is a form of 
TRS that permits an individual with a hearing or a speech disability to 
communicate in text using an internet Protocol-enabled device via the 
internet. For consumers who are deaf-blind, IP Relay service is often 
the sole or primary means of communicating via telephone. The 
Commission reasoned that, because it had not required that all common 
carriers provide access to these services, it was not able to require 
inmate calling services providers to do so. In 2015, the Commission 
sought additional comment on the implications of video calling and 
video visitation services for incarcerated individuals who are deaf or 
hard of hearing. In 2020, the Commission sought comment on whether 
additional forms of TRS should be made available to incarcerated 
individuals, and what the Commission could do to facilitate such 
access.

[[Page 68419]]

    9. In 2021, after reviewing the record of this proceeding, and 
noting that there is far more demand for ``non-mandatory'' relay 
services, such as VRS and IP CTS, than for ``mandatory'' TTY-based 
relay service, the Commission found that access to commonly used, 
widely available relay services, such as VRS and IP CTS, is equally or 
more important for incarcerated people with communication disabilities 
than it is for the general population. Therefore, to ensure that such 
individuals have functionally equivalent access to communications, the 
Commission proposed to amend its rules to require that inmate calling 
services providers give access wherever feasible to all relay services 
eligible for TRS Fund support. The Commission also sought comment on 
whether changes to its TRS rules would be necessary in conjunction with 
expanded TRS access for incarcerated people, and the Commission 
proposed to amend section 64.6040 of its rules to clarify that the 
prohibition on inmate calling services providers charging for TRS calls 
applies to all forms of TRS, and that such charges must not be assessed 
on any party to a TRS call for either the relay service itself or the 
device used. In addition, the Commission also sought comment on whether 
to require inmate calling services providers to give access to direct, 
or point-to-point, video communication for eligible incarcerated 
individuals wherever they provide access to VRS, and whether to limit 
the charges that may be assessed for such point-to-point video service. 
Point-to-point video service enables two or more ASL users to place and 
receive video calls without the assistance of a CA. See 47 CFR 
64.601(a)(32). In a 2021 document, the Commission primarily used the 
term direct video to refer to such calls. While the Commission 
considers direct and point-to-point to be synonymous in this context, 
the Commission uses the term point-to-point in this Order and its final 
rules, to avoid any risk that some parties might assume this service 
could only be provided by a Qualified Direct Video Entity pursuant to 
section 64.613(c) of its rules. Finally, the Commission sought comment 
on whether to extend its reporting requirements from just TTY service 
to all other forms of TRS.

Additional Calling Services Reforms

    10. Rate and Ancillary Services Fee Caps. Beyond the disability 
context, in the 2021 ICS document, the Commission took a number of 
actions that warrant specific attention here. Structurally, that Order 
applied separate rate caps to prisons, jails having average daily 
populations of 1,000 or more incarcerated people, and jails with lower 
average daily populations. Additionally, the Commission established 
interim interstate and international rate caps for prisons and for 
jails having average daily populations of 1,000 or more. Those rate 
caps are interim because flaws in the data submitted in response to the 
Second Mandatory Data Collection prevented the Commission from setting 
permanent caps for interstate and international inmate calling services 
and associated ancillary services that accurately reflect the costs of 
providing those services.
    11. To account for this problem, the Commission directed the 
Wireline Competition Bureau (WCB) and Office of Economics and Analytics 
(OEA) to develop an additional data collection--the Third Mandatory 
Data Collection--to enable the Commission to set permanent rate caps 
for interstate and international inmate calling services that 
accurately reflect the providers' costs of providing those services, 
and to inform the evaluation and potential revision of the Commission's 
caps on ancillary service charges. After seeking public comment, WCB 
and OEA issued an Order requiring each inmate calling services provider 
to submit, among other information, detailed information regarding its 
inmate calling services operations, costs, revenues, site commission 
payments, security services, and ancillary services costs and 
practices. The providers' data collection responses were due June 30, 
2022. The Commission has received responses from 14 providers, and WCB 
and OEA are analyzing those responses.
    12. Looking forward, in 2021 the Commission sought comment on the 
methodology the Commission should use to adopt permanent per-minute 
rate caps for interstate and international inmate calling services, 
including seeking comment on certain aspects of reported costs, such as 
on site commission costs and other site commission reforms for 
facilities of all sizes, and on the costs of providing calling services 
to jails with average daily populations of fewer than 1,000 
incarcerated people.
    13. Ancillary Services Fee Caps and Practices. Building on the 
ancillary services charge rules that the Commission had adopted in 
2015, in 2021 the Commission capped, on an interim basis, the third-
party fees inmate calling services providers may pass through to 
consumers for single-call services and third-party financial 
transactions at $6.95 per transaction. The rules adopted in 2015 
limited permissible ancillary services charges to only five types and 
capped the charges for each: (1) Fees for Single Call and Related 
Services--billing arrangements whereby an incarcerated person's collect 
calls are billed through a third party on a per-call basis, where the 
called party does not have an account with the inmate calling services 
provider or does not want to establish an account; (2) Automated 
Payment Fees--credit card payment, debit card payment, and bill 
processing fees, including fees for payments made by interactive voice 
response, web, or kiosk; (3) Third-Party Financial Transaction Fees--
the exact fees, with no markup, that providers of calling services used 
by incarcerated people are charged by third parties to transfer money 
or process financial transactions to facilitate a consumer's ability to 
make account payments via a third party; (4) Live Agent Fees--fees 
associated with the optional use of a live operator to complete inmate 
calling services transactions; and (5) Paper Bill/Statement Fees--fees 
associated with providing customers of inmate calling services an 
optional paper billing statement. The Commission also sought comment on 
the relationship between these two ancillary services, and on reducing 
the caps for single-call services fees and third-party financial 
transactions fees for automated transactions to $3.00 and the cap for 
live agent fees to $5.95.
    14. Consumer Disclosures. In 2021, the Commission adopted three new 
consumer disclosure requirements to promote transparency regarding the 
total rates charged consumers of inmate calling services. First, the 
Commission required providers to clearly, accurately, and conspicuously 
disclose any separate charge (i.e., any rate component) for terminating 
international calls to each country where they terminate international 
calls on their websites or in another reasonable manner readily 
available to consumers. Second, the Commission required providers to 
clearly label any site commission fees they charged consumers as 
separate line items on consumer bills and set standards for determining 
when the fees would be considered clearly labeled. Finally, the 
Commission required providers to clearly label all charges for 
international calls, as separate line items on consumer bills.
    15. Other Relevant Topics. In the 2021 ICS document, the Commission 
invited comment regarding several additional issues on which it takes 
action today. The Commission expressed concern about providers' 
practices regarding unused funds in inactive accounts and

[[Page 68420]]

invited comment on whether the Commission should require refunds after 
a certain period of inactivity. The Commission proposed to amend the 
definitions of ``Jail'' and ``Prison'' in its rules by, among other 
actions, explicitly including facilities of the U.S. Immigration and 
Customs Enforcement (ICE) and the Federal Bureau of Prisons (BOP), 
whether operated by the law enforcement agency or pursuant to a 
contract, in its definition of ``Jail,'' and by adding the terms 
``juvenile detention facilities'' and ``secure mental health 
facilities'' to that definition. The Commission also highlighted record 
evidence that some providers of inmate calling services may have been 
imposing duplicate transaction costs on the same payments, such as 
charging both an automated payment fee when a consumer makes an 
automated payment to fund its account, as well as charging a third-
party financial transaction fee to cover credit/debit card processing 
costs on the same transaction. The Commission sought comment on whether 
providers engaged in such ``double dipping,'' as had been alleged in 
the record, and whether the Commission's rules clearly prohibit 
assessing multiple ancillary service charges per transaction or should 
be amended to implement such a prohibition. The Commission similarly 
sought comment on whether the credit card processing fees encompassed 
in the automated payment fee are the same credit card processing fees 
referred to in the third-party financial transaction fee.
    16. Finally, the Commission sought comment in the 2021 ICS document 
on whether alternative pricing structures (i.e., those that are 
independent of per-minute usage pricing) would benefit incarcerated 
people and their families. The Commission asked commenters to address 
the relative merits of different pricing structures, such as one under 
which an incarcerated person would have a specified--or unlimited--
number of monthly minutes of use for a predetermined monthly charge. 
The Commission also asked whether it should allow providers to offer 
different optional pricing structures as long as one of their options 
would ensure that all consumers of inmate calling services have the 
ability to choose a plan subject to the Commission's prescribed rate 
caps. Relatedly, in response to a proposal from Securus, the Commission 
sought comment on whether the Commission should adopt a process for 
waiving the per-minute rate requirement to allow for the development of 
alternative pricing structures.

Disability Access Requirements for Calling Services Providers

    17. Enterprise Registration for IP CTS. The Commission seeks 
comment on whether to adopt a form of enterprise registration for IP 
CTS, limited to the correctional context, as advocated by some 
commenters to simplify the commencement of service to eligible 
incarcerated users. Do the modifications made in the accompanying Order 
to the Commission's registration requirements sufficiently address any 
registration-related barriers to the use of IP CTS in the incarceration 
context? Are there significant difficulties with individual 
registration that an enterprise registration option could overcome? If 
needed, how could an enterprise registration option be crafted to 
protect against waste, fraud, and abuse? What are the costs and 
benefits of allowing enterprise registration for IP CTS in the 
incarceration context?
    18. Expanding the Scope of Inmate Calling Services Providers' TRS-
Related Access Obligations. The Commission proposes to extend inmate 
calling services providers' TRS-related access obligations to require 
that access to advanced forms of TRS--VRS, IP Relay, and IP CTS as well 
as ASL point-to-point video calling, where broadband is available, and 
CTS where broadband is not available--be provided in jurisdictions with 
an average daily population of less than 50 incarcerated persons. The 
Commission seeks comment on this proposal. The Commission explains in 
the Order, to ensure that TRS and ASL point-to-point video are 
available to incarcerated persons to the fullest extent possible, the 
Commission believe the TRS-related access requirements of inmate 
calling services providers should be at least coextensive with those of 
correctional authorities--which are not subject to any population size 
limitation. As noted above, to justify less than full compliance with 
the Department of Justice's regulations implementing Title II of the 
ADA, a correctional authority has the burden of proving that compliance 
with this subpart would result in a fundamental alteration in the 
nature of a service, program, or activity or in undue financial and 
administrative burdens.
    19. In the Order, the Commission set an average daily population of 
50 as an initial threshold for the obligation to provide access to 
additional forms of TRS and ASL point-to-point video calling. Have 
video visitation systems continued to proliferate, or have other 
factors changed, such that broadband connections and video devices are 
now routinely provided to a broader range of city or county facilities?
    20. What additional factors may determine the feasibility of 
providing access to internet-based forms of TRS? What specific 
additional costs, for devices or other resources, are incurred by 
correctional authorities in jurisdictions of this size in making 
internet-based TRS available? The Commission seeks additional 
information, for example, on the cost of tablets and other user devices 
suitable for allowing incarcerated individuals to access internet-based 
forms of TRS. What is the range of monthly inmate calling services 
revenue typically generated by city or county jails housing a daily 
population of fewer than 50 incarcerated people?
    21. Is an average daily population of 50 the appropriate threshold 
for requiring access to all forms of TRS and point-to-point video 
service, or is a different threshold warranted? If the Commission 
adopts a lower threshold, how long a period should the Commission allow 
for providers to comply? Should the Commission require that an inmate 
calling services provider serving a smaller jurisdiction ensure that, 
to the maximum extent possible, individuals with disabilities have 
access to appropriate forms of TRS?
    22. Disclosure of Charges in Accessible Formats. The Commission 
believes that providers of inmate calling services are subject to the 
same obligations as providers of telecommunications services and 
advanced communications services to provide information and 
documentation in a manner that is accessible to individuals with 
disabilities. To help ensure individuals with disabilities are fully 
informed about the costs of inmate calling services, the Commission 
proposes that any charges for inmate calling services, whether for 
voice, TRS, TTY-to-TTY, or point-to-point video, be disclosed to 
current and potential consumers of inmate calling services with 
disabilities in accessible formats. Accessible formats include, but are 
not limited to, large print, Braille, videos in American Sign Language 
and that are captioned and video described, emails, and printed 
materials. The Commission seeks comment on this proposal and belief.

Refining the Rules for the Treatment of Balances in Inactive Accounts

    23. The Commission seeks comment on whether it should refine the 
rules it adopt today concerning the treatment of unused funds in 
accounts that consumers use to pay for interstate and

[[Page 68421]]

international inmate calling services and related ancillary services 
charges, including on whether the Commission should take any further 
steps to protect consumers from unjust and unreasonable practices 
regarding those funds. In the Order, the Commission exercises its 
authority under section 201(b) of the Act and prohibits providers of 
inmate calling services from seizing or otherwise disposing of unused 
funds in any account used to pay for interstate or international inmate 
calling services--except through a full refund to the account holder--
until the account has been inactive for at least 180 consecutive days. 
At that point, the provider must make reasonable efforts to refund the 
balance in the account to the account holder and, if those efforts 
fail, must treat any remaining funds in accordance with applicable 
state law requirements. Should the Commission refine these rules to 
increase consumer protection? Why or why not? Should the Commission 
create exceptions to these rules? If so, what exceptions should the 
Commission allow? Are there additional requirements the Commission 
should adopt concerning the disposition of balances in inactive 
accounts? If so, what additional requirements do commenters recommend 
and why? Are there situations where refunds are impractical, 
impossible, or otherwise unduly burdensome, and, if so, what rules 
should apply in those situations?
    24. Inactive Period. In the Order, the Commission adopts a rule 
requiring 180 days to pass before a provider may determine that an 
account has become inactive. Is this an appropriate time frame? Why or 
why not? The Commission also requires that the 180-day inactivity 
period be continuous, with any of the following actions by a consumer 
or an incarcerated person being sufficient to demonstrate activity: (i) 
depositing, crediting, or otherwise adding funds to an account; (ii) 
withdrawing, spending, debiting, transferring, or otherwise removing 
funds from an account; or (iii) expressing an interest in retaining, 
receiving, or transferring the funds in an account, or otherwise 
attempting to exert or exerting ownership or control over the account 
or the funds held within the account. The Commission seeks comment on 
what other actions should constitute expressing an interest in the 
deposited funds. Similarly, how would an account holder or incarcerated 
person exert control over the account? Are there other events that the 
Commission has not already identified that should demonstrate activity 
and cause the 180-day clock to restart? If so, what are they?
    25. Timing of Refunds. The Commission's rules require that a 
provider must make reasonable efforts to refund the balance in the 
account to the account holder. Should the Commission require providers 
to issue refunds within a specified period of time after an account 
becomes inactive? Should the Commission consider a different period of 
time after some other event, such as release from incarceration? If so, 
what period would give providers sufficient time to process the refunds 
while ensuring that consumers receive their money in a timely manner? 
If the account holder requests a refund before the account becomes 
inactive, what is a reasonable time frame in which to issue such 
refund? Do providers need time to process a refund request after they 
receive the request? If so, what is that time frame? Do providers have 
the ability to issue a refund immediately upon request in some 
circumstances? If so, what would those circumstances be? Are there 
situations that should lead providers to immediately refund remaining 
amounts to account holders, even if the account has not been inactive 
for 180 days? If so, what are they? In particular, should the 
Commission require automatic refunds when the incarcerated person is 
released or transferred to a facility served by another provider? If 
so, should the situation vary if the account is held by a consumer 
other than the incarcerated person and can still be used by another 
incarcerated person? If not, what steps, if any, should the Commission 
take to ensure that the account holder has the opportunity to make an 
informed choice regarding whether to receive a refund?
    26. Are there circumstances in which Commission intervention is 
unnecessary or an automatic refund would be impracticable or 
inappropriate? For example, Securus argues that the process for 
deactivating, and making refunds from, debit accounts when an 
incarcerated person is released or transferred is largely controlled by 
the facility and that the Commission should seek more information about 
such refunds. How, if at all, should the Commission refine its refund 
rules to recognize a facility's role in the refund process? Similarly, 
are there situations where a provider may not be aware that an 
incarcerated person has been released or transferred? If so, how can 
the Commission ensure that account holders have an opportunity to 
request refunds in those situations, or in other situations where an 
automatic refund is not feasible or sensible? Should the account holder 
be required to request a refund in writing, either by mail or email? Or 
would a telephonic request or some other type of request be preferable? 
What information would a provider need in order to verify the 
legitimacy of a refund request?
    27. Release and Transfer Processes. The Commission seeks comment on 
the release and transfer processes to better understand the need for 
rules addressing those areas. Do providers receive notice when an 
incarcerated person is released or transferred and, if so, does the 
notice include the incarcerated person's future contact information? If 
not, what steps would be needed to ensure that providers receive all 
needed information about a release or transfer on a timely basis in 
order to efficiently refund money?
    28. Contact Information. The Commission next invites comment on 
whether providers routinely receive the type of contact information 
they would need to notify account holders about inactive accounts and 
to refund unused balances to account holders. Should the Commission 
require providers to collect such information? What information is 
necessary to ensure that a notification actually reaches an account 
holder? Are the account holder's email address, physical mail address, 
or phone number each sufficient? Does the necessary information vary 
depending on whether the account holder is an incarcerated person who 
at some point will be released from incarceration, as opposed to a 
person who maintains an account for the incarcerated person's use? If 
so, how does the necessary information differ in those circumstances, 
and what information would be necessary in the different circumstances?
    29. Notice to Account Holders. The Commission seeks comment on the 
need for rules addressing the manner in which providers notify 
consumers regarding matters affecting their accounts, as well as the 
content of any such notices. Should the Commission require providers to 
notify account holders regarding their inactive account and refund 
policies, and the status of their accounts, including when the accounts 
have been deemed inactive? If so, when and how should those notices be 
provided, and what information beyond the account balance and the 
account holder's right to a refund should the Commission require to be 
disclosed? What sort of notice, if any, should the Commission require 
providers to give account holders in situations where refunds are not 
automatic or where attempts to provide a refund have been ineffective? 
Should

[[Page 68422]]

these notices include an explanation of any state unclaimed property 
laws, or other state laws, that may apply to the funds in their 
accounts? Should the Commission require providers to notify the 
incarcerated person in addition to the account holder? Should the 
Commission require providers to send additional notices to account 
holders who do not respond to the initial notices? Should the 
Commission specify the timing, content, and mode of dissemination of 
any additional notices? How should the subsequent notices inform the 
account holder that if they do not respond, their account may be 
subject to state unclaimed property law, or such other law affecting 
the account holder's rights to the balance?
    30. Refund Mechanisms. The Commission seeks comment on the 
different methods providers can use to refund unused funds and on the 
relative benefits and burdens of each method. For instance, are 
providers able to refund payments made by credit card or from a bank 
account directly to the card or account? What other refund methods are 
available to the providers? When the account holder is an incarcerated 
person who has been released, how should the provider send a refund? 
Should it send a prepaid debit card or check to the person's forwarding 
address? What requirements should the Commission adopt to ensure 
providers quickly send refunds to recently released account holders? 
When the account holder is not the incarcerated person, would mailing a 
prepaid debit card or check to the account holder's billing address 
suffice? Why or why not? Which refund mechanisms are the most effective 
in returning funds to account holders while also minimizing the burdens 
on providers?
    31. Controlling Judicial or Administrative Mandate. The 
Commission's rule regarding the disposition of funds in inactive 
accounts does not apply where a provider is acting in accordance with a 
controlling judicial or administrative mandate. The Commission proposes 
to retain this exception. The Commission also proposes to continue to 
treat as a controlling judicial mandate any court order requiring the 
incarcerated person to pay restitution, any fine imposed as part of a 
criminal sentence, and any fee imposed in connection with a criminal 
conviction to the extent these payments are made from the same account 
used to pay for calling services. The Commission invites comment on 
these proposals. Do they capture the full universe of judicial actions 
that a court may impose on an incarcerated person? If not, what 
language should the Commission incorporate into its rules to capture 
that universe?
    32. The Commission also invites comment on whether it should 
consider a controlling judicial or administrative mandate to include a 
court or administrative agency order allowing or requiring the provider 
to act in a manner that would otherwise violate the Commission's rules 
regarding the disposition of funds in inactive accounts. The 
Commission's rule does not apply to the extent a court or 
administrative agency determines that a contract the provider and the 
account holder entered into prior to the release of today's Order 
allows or requires a different outcome. Is this the correct approach? 
Or should the Commission instead preclude enforcement of any such 
contract as contrary to section 201(b) of the Act's prohibition against 
unjust and unreasonable practices in connection with the provision of 
inmate calling services? Conversely, should the Commission allow 
account holders to knowingly and voluntarily waive any protections the 
Commission's rules provide regarding the disposition of funds in 
inactive accounts? If so, what notice and record keeping requirements, 
if any, should the Commission adopt to ensure that it will be able to 
determine whether account holders are fully informed of, and 
voluntarily waive, their rights under the Commission's rules?
    33. Ultimate Disposition of Unclaimed Funds. The Commission invites 
comment on the ultimate disposition of unclaimed funds in a debit 
calling or prepaid calling account in circumstances where a provider's 
refund efforts fail and state law does not affirmatively require any 
particular disposition. What legal authority does the Commission have 
to act in this regard? Should the Commission adopt rules addressing 
that situation and, if so, what should those rules require? Are there 
any elements of state law, including state unclaimed property law, or 
provisions of the Uniform Unclaimed Property Act that the Commission 
should incorporate into the Commission's rules? Are there any state 
laws that provide inmate calling services-specific exceptions to 
otherwise applicable state unclaimed property? If so, what states have 
such laws and what do those laws say? Are there other types of consumer 
protection laws regarding the distribution or retention of balances in 
inactive accounts that the Commission should consider? If so, 
commenters should cite these other types of laws and explain their 
potential applicability in the inmate calling services context.

Reforming the Consumer Disclosure Requirements

    34. The Commission seeks comment on how it might improve its 
consumer disclosure rules, including extending the scope of those rules 
to reach more inmate calling services consumers. Specifically, the 
Commission proposes to build on prior reforms by requiring inmate 
calling services providers to make the same required disclosures of 
information available to all consumers, regardless of whether they 
receive an actual bill from a provider. The Commission seeks comment on 
a number of questions regarding how providers presently disseminate 
information regarding inmate calling services accounts to consumers and 
on whether it should make additional changes to its consumer disclosure 
rules. The reforms the Commission contemplates will help ensure that 
incarcerated people and those they call will receive clear and 
transparent information about providers' charges and fees that inmate 
calling service consumers need to make informed choices regarding their 
calling services options.
    35. Background. Transparency regarding the charges and fees for 
inmate calling services and associated ancillary services is critical 
because it ensures that incarcerated persons and their families 
understand the prices they are, or will be, charged for the services 
they use, enabling them to make informed decisions when purchasing 
those services. The Commission's inmate calling services rules require 
a variety of consumer disclosures designed to improve transparency. The 
Commission first adopted inmate calling services consumer disclosure 
rules in 1998, requiring providers to make certain oral disclosures 
prior to the completion of interstate inmate calling services calls. 
The Commission also required that, prior to connecting a call, 
providers of inmate operator services are required to disclose orally 
the total cost of the call, including any surcharges or premise-imposed 
fees that may apply to the call, as well as methods by which to make 
complaints concerning the charges or collection practices upon request. 
Since that time, the Commission has expanded its inmate calling 
services rules, including the scope of the required consumer 
disclosures. In 2015, the Commission required calling services 
providers to clearly, accurately, and conspicuously disclose their 
rates and ancillary service charges to consumers on their websites or 
in another reasonable manner readily available to consumers.

[[Page 68423]]

    36. As described above, in 2021, the Commission imposed two 
additional consumer disclosure requirements pertaining to consumer 
bills: (i) requiring providers to clearly label any site commission 
fees they charged consumers as separate line items on consumer bills 
and set standards for determining when the fees would be considered 
clearly labeled, and (ii) requiring providers to clearly label all 
charges for international calls, as separate line items on consumer 
bills. The Commission found these two requirements--the consumer 
billing rules--necessary to provide consumers with the ability to 
evaluate their bills and monitor whether they are receiving the 
protections of the Commission rate caps to which they are entitled. 
Since the Commission adopted these additional requirements, it has 
learned that consumers of inmate calling services often do not receive 
``bills'' from their providers given the nature of their calling 
arrangements. As one party points out, an incarcerated individual using 
a debit or commissary account to pay for inmate calling services does 
not receive a ``bill'' from an inmate calling services provider. 
Indeed, many such consumers may not receive a statement of any kind 
after having paid for their calls. As a result, the information the 
Commission deems important regarding separate site commission rate 
components and international call charges may not be received by many 
calling service consumers.
    37. Disclosures for Consumers Who Do Not Receive Bills. The 
Commission proposes to expand its consumer disclosure rules to cover 
consumers who do not receive bills from their inmate calling services 
providers. The Commission invites comment on this proposal and ask for 
detailed comment on how providers might implement it. The Commission 
also seeks comment on the timing and frequency of disclosures that are 
not included directly on consumers' bills. How should consumers be made 
aware of the availability of the information if it is not automatically 
provided? Should the information be disclosed to consumers 
automatically and on an ongoing basis, for example on any online 
account statement available to that consumer? Alternatively, would 
including the information on the providers' websites for each facility 
suffice to inform interested consumers? Or should such information be 
provided only upon request? If so, upon receiving a consumer request, 
how quickly should a provider be required to supply the consumer with 
the requested information? Would three to five business days be 
sufficient or do consumers need more timely receipt of the disclosures 
in order to manage their accounts effectively? Are inmate calling 
services providers able to respond to requests for charges for site 
commissions and international calls within three to five business days? 
If not, why not? Do consumers who do not receive bills currently 
receive disclosures regarding providers' charges for site commissions 
and international calls in some other way? When, if at all, do 
providers disseminate such information outside the billing context and 
how frequently is such information updated? Is it available today only 
upon request?
    38. Who Should Receive Disclosures? The Commission seeks comment on 
whether account holders should receive disclosures from inmate calling 
services providers. The Commission's rules define a ``consumer'' as the 
party that pays for the inmate calling services. Should the Commission 
extend its consumer disclosure rules to include incarcerated persons 
who use inmate calling services accounts that others fund on the 
incarcerated persons' behalf? Should both the account holder and the 
incarcerated person have access to the bill or be able to obtain 
account-related information from the provider when the incarcerated 
person is not the account holder? Who should be permitted to request 
the disclosures in such circumstances, the account holder, the 
incarcerated person, or both? The Commission seeks comment on whether 
anyone other than consumers and incarcerated persons should have access 
to the required disclosures. Are there other parties who should have 
access to any required disclosures? The Commission proposes to require 
providers to make information about their rates, terms, and conditions 
of service, including information about site commissions and 
international rate components, available generally to the public 
through either the provider's website or other publicly available 
source. Making this information publicly available provides maximum 
transparency and helps ensure that prospective consumers and other 
interested parties have visibility into the inmate calling service 
rates and charges at each facility. Do commenters agree? Why or why 
not?
    39. Statements of Account. The Commission seeks detailed 
information about how consumers who do not receive traditional bills 
access information regarding their accounts. Do all such consumers 
receive a ``statement of account'' or other account summary setting 
forth, among other information, the account balance and the charges 
they have incurred? If so, how are statements of account or similar 
documents provided to consumers? Are they provided in hard copy, 
electronically, or both? Are they available only upon request? How 
often are such statements or disclosures generated and updated? What 
type of hardware or software is required to produce these statements? 
Are they only available online such that consumers not having internet 
access are unable to retrieve them? Who has access to them, the 
incarcerated person, the consumer, or both? The Commission proposes to 
require that consumers of inmate calling services and/or incarcerated 
individuals must have available to them statements of account or 
similar disclosures if they do not receive bills. To the extent 
providers do not presently provide statements of account or other 
account summaries, how costly would it be to make them available? Would 
the cost be outweighed by the public interest benefits of such 
statements?
    40. To the extent that consumers receive statements of account or 
other account summaries, the Commission seeks comment on what 
information, including inmate calling services-related expenditures, is 
disclosed in them. Is the information provided in an itemized list or 
only as a total amount charged? If the information is currently 
provided only on an aggregate basis, how burdensome would it be to 
provide an itemized statement? How burdensome would it be to add 
information regarding providers' charges for site commissions and 
international calls to statements of account or other account 
summaries?
    41. What are the advantages and disadvantages of using statements 
of account or other account summaries to provide information to 
consumers rather than statements with itemized disclosures? What 
challenges do consumers currently face in accessing their account 
information, including specifically the information required by the 
Commission's consumer disclosure rules? Are there other challenges the 
Commission should consider in deciding how best to increase 
transparency in providers' charges and fees? How else can the 
Commission improve consumers' access to relevant information through 
changes to the Commission's consumer disclosure rules?
    42. Reasonableness. The Commission seeks comment on what factors it 
should consider in assessing the reasonableness of different disclosure 
mechanisms. Are the Commission's

[[Page 68424]]

current rules effective in providing information regarding rates, 
charges, and fees to people who are deaf, hard of hearing, deaf-blind, 
or have a speech disability? If not, how should the Commission revise 
those rules to make sure that its disclosure requirements are effective 
for all consumers? The Commission asks commenters to include details as 
to what form disclosures should take, how often they should be 
generated, how they could be accessed, and any other details needed to 
better inform its understanding. The Commission proposes that all 
disclosures, including those regarding reporting requirements and 
charges, be made in an accessible format for incarcerated persons with 
disabilities and invite comment on what steps it should take to 
implement this proposal. The Commission also asks for detailed 
proposals on how it can address any deficiencies in the current 
disclosure mechanisms to ensure that all consumers receive the clear, 
accurate, and timely information they need to make calling decisions 
and manage their accounts.
    43. Methods of Dissemination. The Commission seeks comment on the 
best methods for ensuring that required disclosures reach consumers who 
do not receive bills. What are the differences in cost between 
providing disclosures on bills versus other methods? What other methods 
are available to providers and consumers? Do providers presently use 
paper statements, kiosks, or other means? What other methods should the 
Commission consider and why? Which methods are most effective in 
providing consumers with clear, accurate, and timely information 
regarding their accounts?
    44. If providers do not distribute paper bills, do they disclose 
account-related information through other means? If so, what means do 
they use? Should providers be permitted to make required disclosures 
using only electronic means, such as websites or email, rather than on 
printed documents? If so, what specific alternative methods do 
commenters suggest the Commission allow? Should the Commission's rules 
specify how consumers may request copies of their bills, statements of 
account, or similar disclosures; and if so, how should such a request 
be made? Commenters are encouraged to explain how a request system 
would work and to describe any alternative suggestions in detail.
    45. The Commission seeks comment on how consumers who lack access 
to the internet can receive information about the charges to their 
accounts and their account balances if it is not provided on paper 
bills. Do consumers have reasonable access to information made 
available over the internet or via electronic means? What alternatives 
are used? How do consumers inform the provider that they do not have 
consistent or reliable internet access and, thus, need an alternative 
method to access their account information and any relevant 
disclosures? If the only alternative method available is a paper bill 
or statement, should the Commission require that the provider deliver 
it to the consumer without charge? Consumers should be entitled to 
receive their bills and account statements in some accessible format 
free of charge. What specific changes should the Commission make to its 
rule permitting providers to charge consumers $2.00 per use when they 
provide optional paper billing statements?
    46. Other Rule Changes. The Commission seeks comment on other ways 
its consumer disclosure rules could be amended to more effectively and 
efficiently provide consumers information that would help them 
understand the charges for inmate calling services and associated 
ancillary services. What, if any, other changes should the Commission 
make to its rules, beyond those the Commission already describes in 
document 22-76? Should other line-item disclosures be required on bills 
or other account statements? If so, what should those items be? Should 
the Commission adopt new billing requirements? Should the Commission 
require that inmate calling services providers issue bills on a 
periodic basis to all consumers, such as every month? Would it be 
helpful to add definitions for ``bill,'' ``statement of account,'' or 
any other terms in the Commission's rules? If so, what definitions do 
commenters propose?
    47. The Commission's rules require inmate calling services 
providers to break out in separate line items any site commission fees 
and international call charges. Are there other rates or fees that the 
Commission should require providers to disclose as separate line items? 
Is there other information that the Commission should require providers 
to disclose? If so, commenters should make specific suggestions. The 
Commission invites commenters to suggest other proposed actions, 
alternatives, and rule modifications that it should consider, and to 
describe issues arising from the foregoing matters. The Commission 
encourages commenters to address whether any disclosures it requires 
should be part of an aggregate statement of account that includes all 
charges and fees incurred at the facility, for example commissary or 
other non-telecom-related charges, or whether the Commission should 
require a separate statement limited solely to inmate calling services-
related disclosures. The Commission encourages commenters to offer 
specific language concerning any conforming rule changes in relation to 
any of the foregoing proposals.
    48. Disclosing Rates and Charges. Finally, the Commission's current 
rules require inmate calling services providers to clearly, accurately, 
and conspicuously disclose their rates and ancillary service charges on 
their websites or in another reasonable manner readily available to 
consumers. Inmate calling services providers that offer interstate toll 
service are required to post their rates on their websites, and, to the 
extent they offer inmate operator services, their live agents are 
already required to make certain notifications to customers. The 
Commission seeks comment on how effective these disclosures have been 
at providing consumers with the information they need. To what extent 
do providers use websites to provide this information? Are the website 
disclosures easy for consumers--particularly those with less technical 
expertise--to navigate? Are there ways that inmate calling services 
provider websites could be modified for easier accessibility? If so, 
what steps would providers need to take to make those modifications? Do 
any providers use non-website disclosure methods? If so, what are those 
methods and how effective are they? Should the Commission mandate 
disclosures via website to the extent providers maintain a website and 
in some other manner to ensure that all current or potential inmate 
calling service consumers can access the required disclosures?

Adopting Permanent Caps on Rates and Ancillary Service Charges

    49. The Commission seeks further comment on how it should use the 
responses to the Third Mandatory Data Collection to establish 
reasonable, permanent caps on rates and ancillary service charges for 
interstate and international calling services for incarcerated people. 
That data collection required each inmate calling services provider to 
report, among other information, detailed company-wide and facility-
specific data reflecting the costs they incurred in providing, and the 
revenues they received from providing, inmate calling services and 
associated ancillary services. In the 2021, the Commission sought 
comment on various issues relating to the establishment of such caps, 
and the

[[Page 68425]]

Commission renews its request for comment on these and additional 
issues to assist with deciding whether to establish rate caps and 
suggest additional changes to its rules.
    50. Mandatory Data Collection Responses. The Commission begins by 
seeking comment on the providers' responses to the Third Mandatory Data 
Collection, because the Commission expects to rely on these responses 
when evaluating the appropriate changes to its rules. The Commission 
asks whether the information in those responses meets the standard that 
the Commission applied in the Rates for Interstate Inmate Calling 
Services, Final Rule, 86 FR 40682 (July 28, 2021) (2021 ICS Order), 
where it examined the providers' responses to the Second Mandatory Data 
Collection for completeness, internal consistency, and credibility, 
among other criteria. Do any of the responses deviate from the 
collection instructions in a way that undermines the value and 
usefulness of the information provided? If so, how should the 
Commission correct for such deviations in its evaluation of the 
information? Are any of the Mandatory Data Collection responses 
similarly incomplete in that they omit material information? If so, 
which ones and how are they incomplete? One commenter suggests that 
certain providers' Annual Reports state that the providers charge no 
ancillary service fees, when they actually do charge such fees. How 
should the Commission respond if any provider failed to file a 
response? Because providers have unique access to such information, 
what, if any, evidentiary presumptions should the Commission apply if 
providers failed to file required information?
    51. The Commission also seeks comment on whether the data included 
in the responses appear accurate and reliable, and properly reflect the 
providers' actual costs of providing interstate and international 
inmate calling services and associated ancillary services. Are there 
deficiencies in the provided data, such that the Commission should 
remove apparent invalid or otherwise anomalous data from its analyses? 
Should the Commission exclude information submitted by providers that 
is materially deficient and use the responses from the remaining 
providers in a manner that, if practicable, compensates for the missing 
data to set permanent caps for all providers? If not, why not and what 
should the Commission do in the alternative?
    52. Are there data for particular providers or facilities that 
appear so atypical or implausible as to warrant adjustment or 
exclusion? For example, if there are any providers whose reported 
annual total costs exceed their reported annual total revenues, should 
the Commission adjust the providers' reported costs by treating their 
reported revenues as an upper bound on those providers' actual costs? 
If the Commission makes such an adjustment, should it reduce the 
reported costs allocated to each facility by the same proportion by 
which reported annual total costs exceed reported annual total 
revenues? Similarly, if there are any facilities or contracts whose 
reported annual costs exceed their reported annual revenues, should the 
Commission treat the reported revenues as an upper bound on those 
facilities' or contracts' actual costs? If the Commission makes such an 
adjustment, how should it reallocate the difference among the remaining 
facilities or contracts? Conversely, is there any evidence that 
providers have reported costs at the facility level that exceed 
revenues during the early years of contracts, and proceed to make up 
the deficits during later years? If so, how should the Commission 
account for that? How else might the Commission adjust reported costs 
that exceed reported revenues?
    53. Do any providers allocate costs in a manner that overstates 
costs for certain types of facilities and understates them for others, 
or otherwise misallocates costs? If so, would relying on those 
providers' cost allocations lead to rate caps that are unreasonably 
high for certain facility or contract types but unreasonably low for 
others? Should the Commission adjust reported costs in such instances, 
and if so, how?
    54. Allowable Costs. The Commission invites comment on how it 
should ensure that providers' reported costs of providing inmate 
calling services and associated ancillary services reflect prudently 
incurred investments and expenses that are ``used and useful'' in the 
provision of those services. The Commission has historically treated 
costs as used and useful only to the extent they are necessary to the 
efficient conduct of a utility's business, presently or within a 
reasonable future period. Do the providers' reported costs meet this 
standard? In particular, are any provider's reported costs outside the 
range that a reasonably efficient provider would be expected to incur, 
given the types of facilities it serves? The DC Circuit did not 
foreclose an efficient provider approach, but in relevant part held 
only that the data on which the Commission had relied in developing the 
efficient provider approach that was before the court was flawed, and 
that the Commission had not adequately accounted for conflicting data. 
Precisely what adjustments, if any, should the Commission make to 
exclude costs that are not used and useful from its rate cap 
calculations?
    55. Some commenters have suggested that certain types of 
expenditures, such as those for providers' security and surveillance 
services, should be excluded from providers' costs, as they are 
attributable to functions or services that are distinct from the 
provision of calling services. The Commission invites comment on this 
view. In particular, which of the security and surveillance costs that 
providers included in their filings relate to functions that meet the 
used and useful standard? Worth Rises suggests that any security or 
surveillance functions, beyond those that the Communications Assistance 
for Law Enforcement Act (CALEA) imposes on communications providers 
generally, are neither necessary for the provision of inmate calling 
services nor of services to consumers or the general public.
    56. Factors Affecting Costs. The Commission also seeks further 
comment on factors that affect providers' costs and how it can 
practicably account for those factors in its analysis. Do the data 
support the size and facility tiers the Commission adopted in the 2021 
ICS Order, or do they lend themselves to other alternative tiers? 
Should the Commission consider eliminating tiers altogether in favor of 
a single interstate rate cap for all facilities, regardless of size? 
The Commission also seeks comment on whether average daily population, 
as opposed to another measure, is the best variable to use if it 
divides jails into tiers. Commenters should explain how use of 
alternatives to average daily population would be administratively 
feasible.
    57. Certain commenters suggest that relying on a facility's average 
daily population fails to account for the additional costs rapid 
turnover imposes on providers at smaller facilities. Do the data 
collection responses show that variations in turnover rates, or similar 
measures such as accounts opened and closed or admissions and releases, 
result in variations in provider costs that the Commission should 
consider? Commenters identify certain additional factors, including the 
greater likelihood of damage to equipment and the need to rely on 
contract technicians rather than full-time employees, as cost drivers 
for providers serving smaller facilities. Do the data collection 
responses sufficiently capture these factors? Do those responses 
indicate that other

[[Page 68426]]

variables, such as geographic location or rurality, affect providers' 
costs of providing calling services and associated ancillary services? 
How can the Commission account for the various cost drivers in an 
administratively feasible way in setting permanent interstate and 
international rate caps?
    58. Permanent Rate Caps. The Commission asks parties to present 
their own analyses of the data in providers' data collection responses 
and to suggest methodologies it might use to set reasonable interstate 
and international provider-related rate caps. The interim rate caps 
adopted in the 2021 ICS Order have two components: a provider-related 
rate component, designed to allow providers to recover the costs they 
incur in providing interstate and international inmate calling 
services; and a facility-related rate component designed to compensate 
providers for certain site commission payments they are obligated to 
make to facilities. The 2021 ICS Order employed a zone of 
reasonableness approach in setting separate interim provider-related 
rate caps, a process that involved three distinct steps. The Commission 
first used the cost data that providers had submitted in response to 
the Second Mandatory Data Collection to establish the maximum upper 
bounds of providers' reported costs to set interstate provider-related 
rate caps for prisons and larger jails. Because the data the Commission 
used in setting the upper bounds may have overstated the providers' 
prudently incurred and used and useful costs of providing inmate 
calling services, the Commission then made reasonable, conservative 
adjustments to the reported data and used the adjusted data to 
establish the lower bounds of its zones of reasonableness. Finally, the 
Commission relied on its analysis of the record evidence and on the 
Commission's agency expertise to pick, from within those zones, 
reasonable interim interstate rate caps for prisons and larger jails.
    59. Should the Commission similarly employ a zone of reasonableness 
approach in setting permanent provider-related rate caps? If so, what 
data should the Commission use to set the upper and lower bounds of 
each zone of reasonableness? In the 2021 ICS Order, the Commission set 
the upper bounds of the zones of reasonableness using industry-wide 
mean contract costs per minute, plus one standard deviation relative to 
that mean. The Commission set the lower bounds relying on widely 
accepted statistical tools, including the k-nearest neighbor method, to 
adjust for deficiencies in the provided data. If not, what alternative 
should the Commission use instead? If the Commission continues to 
employ a zone of reasonableness approach, is it necessary or 
appropriate to retain the one standard deviation above and below 
industry-wide mean costs in setting the upper and lower bounds of each 
zone? Alternatively, should the Commission simply establish its upper 
and lower bounds based on industry-wide mean costs, and develop an 
alternative process to ensure an opportunity for cost recovery for 
high-cost providers? If so, what should that process be? Or should the 
Commission use another measure to set the bounds instead, such as the 
interquartile range statistical methodology that one commenter 
suggests? Should the Commission disregard providers, contracts, or 
facilities with costs that vary significantly from the costs of other 
similarly situated providers, contracts, or facilities in setting its 
upper and lower bounds? How should the Commission determine whether 
this significant variation reflects costs that are prudently incurred 
and used and useful in the provision of inmate calling services? What 
adjustments should the Commission make to exclude reported costs that 
were not prudently incurred or are not used and useful from its rate 
cap calculations?
    60. The Commission seeks comment on the appropriate permanent rate 
caps given providers' responses to the Third Mandatory Data Collection. 
If the Commission employs a zone of reasonableness approach, what 
factors should the Commission consider in selecting permanent rate caps 
from within the zone for each rate tier? In particular, how should the 
Commission ensure that each provider is fairly compensated for its 
prudently incurred costs that are used and useful in the provision of 
inmate calling services and ensure that consumers are charged just and 
reasonable interstate and international rates? Should the Commission 
set rate caps that would ensure that the majority of providers, 
contracts, and facilities are able to recover their prudently incurred, 
used and useful costs, while avoiding overcompensation, and use a 
separate process to address outliers? If so, what process should the 
Commission use to ensure that the outliers are not compensated for 
their inefficiencies? For example, should the Commission separate 
providers, contracts, or facilities according to factors that drive 
costs such as size, turnover, or other factors, and then conclude that 
providers, contracts, or facilities within each group should have 
largely similar costs? Should such an approach also account for 
possible differences in providers' cost allocation methodologies, as 
set forth in their reported costs? Would it be appropriate to establish 
separate rate caps for each provider, or groups of providers? Would 
this similarly allow for cost recovery without the need to include a 
buffer? Would that change in approach distort the bidding market by, 
for example, giving providers with higher rate caps an advantage in 
seeking new or renewed contracts? Would it raise other new concerns, 
such as a heightened risk of abuse in providers' future cost reporting?
    61. The Commission also seeks comment on how the collected data 
should affect its resolution of other issues relating to its rate cap 
calculations. The Commission seeks comment on the benefits, issues, and 
obstacles of analyzing the collected data at the contract or company-
wide level, as opposed to the facility level. Would analyzing the data 
at the contract level help to develop cost allocations that better 
reflect commercial reality? Alternatively, would a focus on contract-
level costs increase the likelihood of widespread overcompensation? 
Could the Commission segregate contracts according to size, inmate 
turnover, composition of facilities, or other factors that drive costs? 
If the Commission's rate caps were to allow every provider to fully 
recover its allowable costs at the contract or the company-wide level, 
would there be any concern that the costs allocated to some facilities 
would exceed the provider's revenues from those facilities? Or would it 
suffice, in those circumstances, if the provider's revenues from each 
facility equaled the portion of its allowable costs directly assigned 
or directly attributed to the facility plus an additional amount to 
offset a portion of the provider's other costs?
    62. Treatment of Ancillary Services. The Commission seeks comment 
on how it should use the responses to the Mandatory Data Collection to 
reevaluate and, if appropriate, revise its ancillary services rules and 
fee caps. The Commission's current rules permit providers to charge 
fees for ancillary services in addition to the per-minute fees they 
charge consumers for interstate and international calls. Do the 
reported data provide a reasonable allocation of costs between inmate 
calling services and various ancillary services? If so, do those data 
demonstrate that the current ancillary services fee caps are 
commensurate with the reasonable costs

[[Page 68427]]

of those services? If not, how can the Commission cap ancillary service 
charges to levels that more accurately reflect costs?
    63. Some commenters suggest the Commission should remove costs 
related to ancillary services from its calculations of its per-minute 
rate caps. Should the Commission take that approach? Alternatively, are 
some or all of these services an inherent part of providing inmate 
calling services, and consequently should the Commission include those 
costs in its per-minute rate cap calculations and eliminate some or all 
charges for ancillary services? For instance, would it be reasonable 
for the Commission to include all costs that providers incur in 
processing credit and debit card payments in the Commission's per-
minute rate cap calculations and preclude providers from imposing 
separate charges in connection with those payments? Would it make sense 
for providers to recover all their billing costs through per-minute 
charges, rather than splitting that recovery among calling services and 
the providers' ancillary services? Should the Commission instead 
analyze both sets of services together, and require that total revenues 
from both inmate calling services and permissible ancillary services 
not exceed the combined reasonable costs of both service types? Which 
approach would provide the best overall rate structure?
    64. Under what circumstances should the Commission continue to 
permit separate ancillary service fees? For example, should the 
Commission do so where the service is only supplied at the customer's 
discretion? For ancillary services that commenters recommend that the 
Commission continues to separate fees, the Commission seeks comment on 
whether it should adjust the current caps. The Commission asks 
commenters to present their own analyses of ancillary services cost and 
revenue data and to suggest methodologies it might use to adjust the 
ancillary services fee caps. Should the Commission develop separate 
zones of reasonableness for each type of permissible ancillary service? 
If so, how should the Commission calculate the upper and lower bounds 
of each service, and what factors should the Commission consider in 
picking a new cap from within the zone? If not, why not and what 
alternative approach should the Commission use?
    65. The Commission seeks further comment on whether the reported 
data reveal a need for additional revisions to its ancillary service 
charges rules. In 2021, the Commission highlighted record evidence 
concerning the assessment of duplicate transaction costs on the same 
payments, and it sought comment on whether the credit card processing 
fees encompassed in the automated payment fee are the same credit card 
processing fees referred to in the third-party financial transaction 
fee. The Commission sought comment on whether providers engaged in such 
``double dipping,'' as alleged in the record, and whether the 
Commission's rules clearly prohibit assessing multiple ancillary 
service charges per transaction or should be amended to implement such 
a prohibition. In response, PPI urges the Commission to prohibit inmate 
calling services providers from charging both automated fee payments 
and third-party transaction fees arising from the same transaction 
because, carriers are recouping payment-card processing costs twice 
over. PPI contends that when carriers impose the $3 fee allowed under 
47 CFR 64.6020(b)(1) while also making customers pay the carrier's card 
processing costs under 47 CFR 64.6020(b)(5), this constitutes an 
unreasonable charge, unjust enrichment, and circumvention of the 
Commission's stated purpose in promulgating ICS rules. Similarly, NCIC 
asks the Commission to prohibit third-party transaction fees which lead 
to double billing of inmate calling services customers. Several parties 
also argue that including credit card processing fees as part of the 
third-party pass-through allowance was a mistake and has led to abuse. 
Securus agrees that such double recovery, if it is occurring, would be 
inappropriate and the Commission should clarify that a credit card 
processing fee may only be imposed once for the same transaction or 
payment. On the other hand, Securus claims that it may impose an 
automated payment fee that recovers the internal costs in managing 
accounts and may also impose a third-party credit card processing fee 
to cover the costs imposed on Securus by a third-party credit card 
payment processing company if a credit card is used to fund a prepaid 
account. Securus agrees that a straightforward requirement barring 
duplication of the same charges for the same transaction or payment 
would be appropriate, but contends that it should be entitled to 
recover that third-party cost. Securus and GTL also argue that the 
Commission should not assume that the assessment of more than one 
transaction fee for a single transaction means that double recovery is 
taking place. Similarly, GTL asserts that the Commission consistently 
has maintained a distinction between Automated Payment Fees assessed by 
an inmate calling services provider on a qualifying transaction and the 
attendant Third-Party Financial Transaction Fees a provider may pass 
through to the consumer to facilitate the completion of that 
transaction.
    66. The Commission invites comment on these issues related to 
transactions that involve credit card processing, including whether the 
data show that providers assess multiple ancillary services charges for 
a single transaction. Do the data from the Third Mandatory Data 
Collection demonstrate that providers are recovering payment card 
processing costs twice? If so, which data show this double recovery? Do 
commenters agree with NCIC and PPI that the inclusion of credit card 
processing in connection with third-party financial transaction fees 
was a mistake? Why or why not? Should the Commission clarify that 
payment card processing fees may not be imposed multiple times for a 
single transaction or payment, but still allow providers to charge both 
an automated payment fee as well as a third-party financial transaction 
fee for a single transaction, in order to recover costs imposed by a 
third-party credit card payment processing company, as Securus 
suggests? Or should the Commission disallow the inclusion of payment 
card processing costs in connection with third-party financial 
transaction fees?
    67. Do the data show evidence of other forms of potentially 
duplicative charges with respect to ancillary service charges? The 
Commission likewise seeks comment on whether there are scenarios in 
which the imposition of more than one ancillary service charge may be 
appropriate. If so, which data? NCIC offers documentation that certain 
inmate calling services providers may be imposing additional ancillary 
fees on inmate calling services consumers in contravention of the 
Commission's rules. NCIC alleges that the imposition of additional 
transactional fees has grown to be a significant revenue generator for 
certain inmate calling services providers and provides evidence that 
certain providers may be tacking on additional fees for online 
deposits. For example, in one instance, a provider appears to have 
charged a $3.00 transaction fee and a 6% credit card processing fee 
(among other fees) on a $10 deposit. The Commission invites comment on 
these purported practices, and whether these fees recover valid costs 
or are leading to double recovery for providers.
    68. The Commission seeks comment on further reforms it should make 
to

[[Page 68428]]

fees for single-call services and third-party financial transaction 
fees to ensure that charges are just and reasonable. As an initial 
matter, in the Order, the Commission lowers the caps on fees for 
single-call services and third-party financial transaction fees to 
$3.00 for automated payment transactions and $5.95 for live agent 
transactions. PPI suggests that the Commission should impose even lower 
caps after the conclusion of the data collection. Do the data from the 
Third Mandatory Data Collection support lowering these caps, as PPI 
suggests? If so, to what levels? Securus on the other hand asserts that 
the automated payment fee recovers the internal costs in managing 
accounts. What are the costs associated with managing accounts? Should 
those costs be recoverable through the automated payment fee? Or should 
those costs be factored into the per-minute inmate calling services 
rates? Commenters should be as specific as possible identifying 
circumstances under which any such costs should be factored into the 
per-minute inmate calling services rates.
    69. Some commenters argue that live agents may not be available in 
single-call services. Do other commenters agree with this assessment? 
One commenter suggests that the fee for single-call services should be 
no more than $0.25 to cover credit card transaction fees. The 
Commission seeks comment on this cap. Should the Commission consider 
prohibiting inmate calling services providers from imposing anticipated 
taxes on consumers at the time of a deposit? NCIC suggests that without 
knowing each call's end point, the provider cannot determine the actual 
tax obligation arising from a call, resulting in overcollection by the 
provider. How should the Commission ensure that consumers are not 
overcharged by providers for anticipated federal, state, or local 
taxes?
    70. PPI asserts that single-call services are losing popularity and 
are becoming uncommon in the industry, given that, by definition, they 
require third-party billing. PPI contends that carriers still commonly 
allow or encourage customers to pay for calls on a one-off basis, but 
billing is typically done directly by the carrier without the 
involvement of a third party. Do commenters agree? How prevalent are 
single-call services? For those who are newly incarcerated, are single 
calls the only way to make initial contact with loved ones outside of 
the correctional facility? If not, what other options are available? 
How do providers bill for single-call services? If a provider uses a 
third party to bill for single-call services, and also assesses an 
automated payment fee on consumers who elect to pay by credit card, 
should the Commission allow providers to assess both a third-party 
payment fee and an automated payment fee for the same transaction? 
Relatedly, the Commission is concerned that consumers without a credit 
or debit card may be unable to pay for single calls from an 
incarcerated individual because payment using a credit or debit card 
appears to be the only option for consumers to pay for such calls at 
the time the call is made. NCIC conducted test calls and discovered 
that a consumer without an account or enough funds to pay for a call 
could either pay using a payment card or decline the call. Do 
commenters agree that consumers must use a payment card to pay for 
single calls? If not, how can consumers pay for single calls if they do 
not have a credit or debit card? How can the Commission ensure that 
incarcerated people are able to successfully initiate communication 
using single-call products? Should the Commission prohibit any 
transaction fees on single calls?
    71. Finally, the Commission seeks comment on how its ancillary 
service charges caps should be adjusted to better reflect the actual 
cost of providing particular ancillary services, in light of the data 
from the Third Mandatory Data Collection. In 2021, the Commission 
sought comment on proposals to reduce its ancillary service charge caps 
and whether it should adjust the caps based on the data from the Third 
Mandatory Data Collection. In response, PPI supports lowering the caps 
on third-party financial transaction fees, fees for single-call 
services, automated payment fees, and live-agent fees, following 
completion of the Third Mandatory Data Collection. Do the data from the 
Third Mandatory Data Collection support reductions of these fees? If 
so, to what levels? Commenters should provide their own analyses of the 
reported data in support of any proposed caps. NCIC argues that certain 
ancillary costs have increased. NCIC points to the fact that credit 
card processing fees have not decreased in the past six years, but 
certain compliance requirements such as Payment Card Industry 
Certification requires more rigorous network intrusion testing than 
what was required six years ago when the ancillary caps were first 
adopted. NCIC also posits that labor costs have increased by at least 
20% in the past 6 years. Do commenters agree with these assertions? Do 
the data from the Third Mandatory Data Collection support a conclusion 
that ancillary services costs have increased? If so, how? To account 
for increasing costs, NCIC suggests that there should be a process for 
the Commission's ancillary fee caps to be adjusted to account for 
inflation and labor costs. Do commenters support this proposal? If so, 
what mechanism could the Commission adopt to implement such a proposal 
and how could that mechanism be incorporated into its rules?

Potential Pilot Programs Offering Alternative Pricing Structures

    72. The Commission seeks further comment on whether to allow inmate 
calling services providers to offer optional pilot programs that offer 
consumers the ability to purchase inmate calling services under 
alternative pricing structures, in addition to the traditional per-
minute pricing model required by its rules. The Commission invites 
comment on whether, as several parties suggest, pilot programs offering 
alternative pricing structures, generally, would benefit incarcerated 
people and their families by lowering calling costs and increasing 
connectivity. The Commission also invites commenters to elaborate on 
the specific elements and attributes it should require of any pilot it 
might allow, and how it can ensure that providers structure such pilot 
offerings in a manner that does not harm consumers. In particular, the 
Commission seeks comment on how to ensure that any such pilot programs 
would not undermine its caps on interstate and international rates and 
ancillary services charges. In addition, the Commission seeks comment 
on whether it should permit any such pilot programs only subject to 
certain specified conditions.
    73. Background. The Commission's rules prohibit inmate calling 
service providers from charging for calls on a per-call or per-
connection basis and require the providers to price their interstate, 
international, and jurisdictionally indeterminate calling services at 
or below specific per-minute rate caps. For convenience, the Commission 
refers to 47 CFR 64.6030, 64.6080, 64.6090 as the pricing structure 
rules. Separately, the Commission's rules allow inmate calling service 
providers to charge consumers for any of five specified types of 
ancillary services charges, each subject to their own respective caps. 
This structure results in incarcerated persons and their families 
paying for their interstate and international phone calls on a per-
minute basis. Outside of correctional facilities, however, most phone 
users no longer pay per-minute rates for the phone calls they place.

[[Page 68429]]

    74. In document FCC 22-76, the Commission sought comment on 
alternative pricing structures that depart from traditional per-minute 
pricing. Among other questions, the Commission asked whether it should 
allow providers to offer different optional pricing structures subject 
to the Commission's prescribed rate caps and whether the Commission 
should adopt a process for waiving the per-minute rate requirement to 
allow for the development of alternative pricing structures. Shortly 
after the release of the 2021 ICS Order, Securus filed a petition 
asking the Commission to waive its pricing structure rules to allow 
Securus and other providers to offer alternative rate options. 
According to the Petition, Securus had offered pilot programs at 
certain facilities that gave consumers the option to purchase 
intrastate inmate calling services pursuant to subscription pricing 
plans. The correctional institution determined the maximum amount of 
time available for each call, and the maximum call duration typically 
varied between 15 and 30 minutes. For a flat fee, consumers who elected 
to participate could buy packages of 25 telephone calls per week or 100 
calls per month. This flat rate consists of a base rate plus a charge 
for the recovery of site commissions if applicable. Securus also 
charged a $3.00 automated payment fee upon enrolling in or renewing a 
subscription plan. Securus explains that the effective price of these 
packages ranged from $0.02 to $0.07 per minute for consumers who used 
every available minute, lower than the rate caps applicable to 
interstate calls made from the same facilities. If consumers used less 
than half of their available calling minutes, Securus asserts that the 
effective per-minute price increased to a range of $0.03 to $0.13 per 
minute. Securus notes, however, that because many of the calls made 
using the subscription plans were to wireless phones whose exact 
physical location was difficult to determine, it had to treat 
potentially in-state but jurisdictionally indeterminate calls as 
interstate calls whose rates are limited to per-minute charges, 
jeopardizing the development and availability of flat-rate subscription 
plans for multiple calls. WCB sought comment on Securus's Petition. 
Although the Commission does not resolve Securus's Petition in document 
FCC 22-76, it does seek further comment on the benefits of the 
subscription calling pilot program as described therein, and on other 
pilot programs that providers may offer under the Commission's rules.
    75. Although several commenters recognized the potential benefits 
of pilot programs, such as the ones Securus has offered, other 
commenters sought more information about the company's pilot programs 
and expressed concerns that incarcerated people and their families may 
not have received enough information to make informed decisions about 
whether the programs would meet their needs. Specifically, commenters 
ask that Securus be required to provide consumers with more complete 
disclosures regarding prices, fees, call metrics, and the terms and 
conditions relating to renewal and cancellation of its alternative 
calling plans. Commenters also urge the Commission to require any pilot 
program to adhere to certain pricing, disclosure, and other conditions 
to protect incarcerated persons and their families from abuse.
    76. Potential Pilot Programs. The Commission seeks comment on 
whether it should amend its rules to permit providers--subject to 
certain conditions--to offer pilot programs for inmate calling services 
that use pricing structures other than per-minute rates. The Commission 
seeks comment on the types of alternative programs that would be most 
beneficial to incarcerated people and on the reasons why such programs 
would be superior to the current per-minute pricing structure. Would a 
flat-rate package, such as a single price for an allotment of minutes, 
offer the most benefits? The Commission encourages commenters to fully 
explain how any pricing model would operate, how it would benefit 
consumers, and how the Commission can ensure that it would not harm 
consumers. The Commission encourages commenters to describe potential 
pilot programs in detail, including both the pricing and other 
operational features of any program.
    77. What would be the costs and benefits of various types of 
alternative pricing structures? Would certain alternative pricing 
structures offer incarcerated people and their families more 
predictable, reliable, or affordable calling rates than others? If so, 
which rate structures would be most advantageous to consumers and why? 
Which types of offerings would give providers greater certainty 
regarding their inmate calling services revenues or offer other 
benefits tied to predictability? What type of consumer outreach or 
education would be needed to ensure that consumers are able to choose 
the pricing structure that best meets their needs?
    78. Potential Conditions. The Commission seeks comment on whether 
and how it could ensure that all pilot programs offer rates that, on a 
per-minute basis, are less than its current per-minute rate caps. What 
measures, if any, would be needed to protect consumers against 
unreasonably high interstate and international rates in connection with 
pilot programs? How should the Commission determine whether the rate 
offered under any proposed alternative pricing structure is, on a per-
minute basis, less than its rate caps? Should the Commission take the 
total price of the pilot program offering and divide it by the total 
amount of minutes available under that program? How else might the 
Commission determine whether a specific alternative pricing structure 
results in higher effective rates for consumers than what they would 
pay under the applicable per-minute caps? Should the Commission provide 
for true-up procedures, under which providers would be required to 
refund any revenues exceeding those permitted under its rules? The 
Commission encourages commenters to be specific and to demonstrate how 
any given structure would be consistent with its caps. Should the 
Commission assume that each consumer will use every call and minute 
available under an alternative pricing program? Or should the 
Commission require that the consumer's actual usage be taken into 
account? If the Commission takes the latter approach, how should the 
Commission assess whether a pilot program's pricing is consistent with 
its caps? Should the Commission require that any alternative plan offer 
consumers a discount compared to what they would pay for the same usage 
under its existing per-minute rate caps? If so, what should the minimum 
discount be? Finally, how should the Commission treat plans that offer 
an unlimited number of minutes or have indefinite terms?
    79. The Commission seeks further comment on whether all pilot 
programs should be optional, so that incarcerated people and their 
families always are able to choose to purchase interstate and 
international calling services at per-minute prices that do not exceed 
its rate caps. If so, how should the Commission implement this 
condition for different types of pilot programs? The Commission also 
seeks comment on whether there are specific policies it should adopt to 
protect consumers and on whether there are specific features or 
attributes that different pilot programs should include. Should the 
Commission require providers to offer a set minimum number of calls or 
minutes per month, or other time period? Should the

[[Page 68430]]

Commission require providers to allow consumers to roll over any unused 
minutes into each successive subscription period? Are there other 
specific parameters the Commission should require? Should providers be 
required to provide credits or otherwise make consumers whole for any 
calls that are not completed or that are dropped? If a pilot program 
offers calling services on a periodic subscription basis, should 
consumers be able to opt out of automatic renewals of their 
subscriptions? Should providers be required to provide more than one 
opt-out method? Should consumers be permitted to cancel a subscription 
before the end of the subscription period? If so, should providers be 
required to offer refunds? If providers are required to offer refunds, 
how should they provide such refunds in the event of cancellation prior 
to the end of a subscription term?
    80. Disclosures and Consumer Awareness. The Commission invites 
comment on what rules, if any, it should adopt to ensure that providers 
clearly, accurately, and conspicuously disclose the details of any 
alternative pricing plans, while at the same time clearly conveying to 
consumers the continued availability of per-minute calling plans. Since 
providers may implement different types of alternative pricing 
structures, it is critical that incarcerated people and their families 
understand their provider's alternative offerings and how they differ 
from per-minute usage. The Commission seeks comment on what information 
consumers would need about providers' pilot programs to help them make 
informed choices between a pilot program and traditional per-minute 
pricing. Should the Commission require providers to inform consumers 
how a pilot program's prices translate on a per-minute basis, to enable 
consumers to make an informed decision between the program and the 
traditional per-minute pricing model? If not based on an equivalent 
per-minute price, how should any price comparison be made? More 
generally, how should providers present the prices under alternative 
plans, and what specific elements should be itemized? What sort of 
terms and conditions would help consumers understand what a given plan 
entails? Various terms and conditions could include, but are not 
limited to: pilot program costs, ancillary service charges, automatic 
renewal terms, cancellation policies, and refund policies. Should the 
Commission adopt additional rules governing how providers should 
disclose to consumers the rates, terms, and conditions associated with 
any pilot program? If so, what specific information should providers be 
required to disclose? Should the Commission require a written or 
electronic disclosure, or otherwise specify the manner in which 
providers must make any required disclosures?
    81. The Commission seeks comment on these potential conditions, and 
on any other conditions that might be necessary in order to preserve 
the protections for incarcerated people under its rules. Should the 
Commission require providers to inform it of their intent to offer a 
pilot program and the details of that program, or require other 
notification steps? Are there any other constraints or requirements the 
Commission should adopt? Conversely, are there other rules the 
Commission might need to waive in order for pilot programs using 
alternative pricing structures to be commercially viable?
    82. Pilot Period. The Commission seeks comment on whether it should 
authorize pilot programs for a limited period, for example two years. 
Would such a time period provide sufficient time to allow incarcerated 
people and their families to adjust to the offerings and for the 
Commission to more fully evaluate the costs and benefits of any 
individual program? Would two years allow the market to adjust to any 
new offerings? Should the Commission adopt a longer or shorter period? 
Why or why not? Are there relevant performance metrics, such as rate of 
adoption or usage, that will be most affected by the duration it 
chooses? When should any period commence?
    83. Program Continuance. The Commission invites comment on what 
factors it should consider in deciding whether to extend a pilot 
program beyond the initial permitted period to make that program 
permanent. What information should the Commission focus on in 
evaluating the efficacy of such programs? What, if any, information 
should the Commission require providers to submit regarding their pilot 
programs so that the Commission can make an informed judgement on 
extending the pilot programs or amending its rules to allow them to 
continue permanently?
    84. Burden of Demonstrating Compliance with Existing Rate Caps. 
Finally, the Commission seeks comment on whether to require providers 
to bear the burden of demonstrating that any pilot programs comply with 
its inmate calling service rate and ancillary services fee caps. If the 
Commission does adopt such a requirement, what should the consequences 
be if the provider fails to meet that burden? Should the consumer then 
be entitled to a refund of the charges over and above those that would 
have been assessed on a per-minute basis? What would the appropriate 
period be for determining whether a pilot program has complied with the 
Commission's rate caps, and how can this burden be met for calling 
plans that are not dependent upon a given period (such as a fixed fee 
for a number of calls)? For example, should the Commission evaluate 
compliance with its rate and ancillary fee caps on a three-month basis 
to account for normal variations in calling patterns that on average 
would end up complying with the Commission's rate caps if calls had 
been billed on a per-minute basis over the three-month period? Should 
the Commission adopt a shorter or longer period and, if so, why? What 
other factors should the Commission consider regarding the burden of 
proof?

Definitions of ``Jail'' and ``Prison''

    85. The Commission seeks comment on whether it should expand its 
definitions of ``Jail'' and ``Prison'' to ensure that they capture the 
full universe of confinement facilities with residents who access 
interstate or international communications services. Specifically, the 
Commission invites comment on whether it should include in those 
definitions civil commitment facilities, residential facilities, group 
facilities, and nursing facilities in which people with disabilities, 
substance abuse problems, or other conditions are routinely detained. 
The Commission asks that commenters address in detail whether residents 
of such facilities are able to access voice and other communications 
services through providers of their own choice, as opposed to being 
limited to the providers selected by third parties. The Commission 
seeks comment on its authority to apply its inmate calling services 
rules, including those addressing communication disabilities, to these 
facilities. Does that authority, if any, vary depending on whether a 
facility is a non-governmental, as opposed to governmental, facility? 
The Commission also seeks comment on the costs and benefits of applying 
its rules to these facilities and on any practical problems that such 
application might create. The Commission asks, in addition, whether it 
should tailor any of its non-definitional rules to address the specific 
circumstances of these facilities and, if so, how it can best ensure 
that their residents have access to interstate and international voice 
and other communications services at rates, and

[[Page 68431]]

on terms and conditions, that are just and reasonable.

Digital Equity and Inclusion

    86. The Commission, as part of its continuing effort to advance 
digital equity for all, including people of color, persons with 
disabilities, persons who live in rural or Tribal areas, and others who 
are or have been historically underserved, marginalized, or adversely 
affected by persistent poverty or inequality, invites comment on any 
equity-related considerations and benefits (if any) that may be 
associated with the proposals and issues discussed in document 22-76. 
Section 1 of the Act provides that the FCC regulates interstate and 
foreign commerce in communication by wire and radio so as to make such 
service available, so far as possible, to all the people of the United 
States, without discrimination on the basis of race, color, religion, 
national origin, or sex. The term ``equity'' is used here consistent 
with Executive Order 13985 as the consistent and systematic fair, just, 
and impartial treatment of all individuals, including individuals who 
belong to underserved communities that have been denied such treatment, 
such as Black, Latino, and Indigenous and Native American persons, 
Asian Americans and Pacific Islanders and other persons of color; 
members of religious minorities; lesbian, gay, bisexual, transgender, 
and queer (LGBTQ+) persons; persons with disabilities; persons who live 
in rural areas; and persons otherwise adversely affected by persistent 
poverty or inequality. Specifically, the Commission seeks comment on 
how its proposals may promote or inhibit advances in diversity, equity, 
inclusion, and accessibility, as well the scope of the Commission's 
relevant legal authority.

Initial Regulatory Flexibility Analysis

    87. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in document FCC 
22-76. The Commission requests written public comments on the IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments provided in the Dates section of document 
22-76. The Commission will send a copy of the document, including the 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA).

Need for, and Objectives of, the Proposed Rules

    88. In document FCC 22-76 the Commission seeks additional comment 
on whether to allow a simplified form of registration for using IP CTS 
in correctional facilities, similar to enterprise phone registration 
currently allowed for VRS. The Commission seeks comment on whether it 
should require inmate calling services providers to provide access to 
additional forms of TRS in jurisdictions with average daily populations 
of fewer than 50 incarcerated people. The Commission also proposes and 
seeks comment on requiring that charges for inmate calling services be 
disclosed in accessible formats.
    89. The Commission also seeks additional evidence and comment from 
stakeholders to enable further reforms concerning providers' rates, 
charges, and practices. First, the Commission seeks comment on refining 
the rules adopted in document 22-76 concerning the treatment of 
balances in inactive accounts. Second, the Commission seeks comment on 
expanding the breadth and scope of existing consumer disclosure 
requirements. Third, the Commission addresses certain issues that arose 
from the providers' 2022 data collection responses. Specifically, the 
Commission seeks comment on how data collected by the Commission should 
be used to establish just and reasonable permanent caps on interstate 
and international rates and associated ancillary service charges 
consistent with the statute. The Commission seeks comment on whether to 
allow inmate calling services providers to offer pilot programs 
allowing consumers to purchase calling services under alternative 
pricing structures. Finally, the Commission seeks comment on revisions 
to its definitions of ``Prison'' and ``Jail,'' and on how the proposals 
in document 22-76 may promote or inhibit digital equity and inclusion.

Legal Basis

    90. The legal basis for any action that may be taken pursuant to 
document 22-76 is contained in sections 1, 2, 4(i)-(j), 201(b), 218, 
220, 225, 255, 276, and 403 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i)-(j), 201(b), 218, 220, 225, 255, 
276, and 403.
    91. The types of entities affected are: wired telecommunications 
carriers; local exchange carriers; incumbent local exchange carriers; 
competitive local exchange carriers; interexchange carriers; local 
resellers; toll resellers; other toll carriers; payphone service 
providers; TRS providers; and other telecommunications.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    92. Compliance with Requirements to Provide Access and Expanded 
Registration Requirements. The Commission seeks comment on whether to 
allow enterprise registration for IP CTS use, limited to the 
correctional context. If adopted, IP CTS providers would have an 
alternative registration method for incarcerated people with 
communication disabilities to access TRS. The Commission also seeks 
further comment on whether to modify the scope of inmate calling 
services providers' TRS obligations as determined in document 22-76. In 
particular, the Commission seeks comment on requiring those providers 
to provide access to additional forms of TRS (VRS, IP Relay, IP CTS, 
and CTS) when they serve facilities in a jurisdiction with average 
daily populations of fewer than 50 inmates. If adopted, inmate calling 
services providers that do not all already provide these additional 
forms of TRS to smaller facilities may have additional data to report 
as a part of the Commission's Annual Reporting and Certification 
Requirement to comply with requirements adopted in the Report and Order 
portion of document FCC 22-76. The Commission also proposes to require 
that charges for inmate calling services be disclosed in accessible 
formats. If adopted, inmate calling services providers that do not all 
already provide such information in accessible formats would need to do 
so.
    93. Other Potential Requirements. The Commission seeks comment on 
refining the rules adopted in document 22-76 concerning the treatment 
of unused funds in accounts consumers use to pay for interstate and 
international inmate calling services and related ancillary services 
charges, as well as on amendments to those rules which aim at 
protecting inmate calling services account holders against unreasonable 
practices in related to those funds. The Commission also seeks comment 
on the appropriate permanent interstate and international rate and 
ancillary services fee caps given providers' responses to the Third 
Mandatory Data Collection, as well as on other amendments to its 
ancillary services rules.
    94. The Commission seeks comment on how amending its current 
consumer disclosure rules could improve and expand the current rules 
and reach more inmate calling services consumers. The potential changes 
include mandating

[[Page 68432]]

that all inmate calling services providers to make the same required 
disclosures of information available to all consumers, regardless of 
whether they receive an actual bill from a provider. The Commission 
invites comment on whether to allow inmate calling services providers 
to supplement traditional per-minute pricing and develop optional pilot 
programs that offer consumers the ability to purchase inmate calling 
services under alternative pricing structures. The Commission invites 
comment on whether it should authorize such programs subject to certain 
specified conditions, including conditions protecting against 
unreasonably high charges for interstate and international calling 
services. The Commission seeks comment on whether it should expand its 
definitions of ``Jail'' and ``Prison'' to ensure that they capture any 
confinement facilities with residents who may access interstate and 
international communications services, and on how its proposals may 
promote or inhibit digital equity and inclusion.

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    95. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rules for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities. The Commission will consider all of these factors 
when it receives substantive comment from the public and potentially 
affected small entities. In particular, the Commission will consider 
the economic impact on small entities, as identified in comments filed 
in response to Document FCC 22-76 and the IRFA, in reaching its final 
conclusions and promulgating rules in this proceeding.
    96. The Commission seeks comment on allowing enterprise 
registration for IP CTS so that incarcerated people with communication 
disabilities can access TRS. If adopted, this alternative form of 
registration could reduce the burden on IP CTS providers by allowing 
providers to register the relay service at a facility that maintains a 
list of users. The Commission also seeks further comment on requiring 
inmate calling services providers to provide access to all forms of TRS 
in a jurisdiction with an average daily population of fewer than 50 
incarcerated people. The request for comment includes asking for cost 
data to assist the Commission with its analysis of the issue. The cost 
data will help the Commission ensure it is achieving its statutory 
obligation of ensuring TRS are available to extent possible, while 
appropriately considering the burden on affected entities.
    97. The comments that stakeholders submit in response to the 
Commission's requests for comment on refining its rules on the 
treatment of funds in inactive inmate calling services accounts, the 
appropriate permanent interstate and international rate and ancillary 
services fee caps, and other potential amendments to its ancillary 
services rules, will supplement comments previously filed in this 
proceeding. Collectively, these comments will help the Commission meet 
its statutory obligation to ensure that providers' rates, terms, and 
practices for interstate and international inmate calling services are 
reasonable. Small entities can provide input in these areas addressing 
whether, among other considerations, the Commission should adjust its 
rules to address any particular financial or implementation challenges 
faced by small entities.
    98. Similarly, the Commission's requests for comment regarding 
possible amendments to its consumer disclosure rules, regarding 
potential pilot programs for inmate calling services that use pricing 
structures other than per-minute rates, regarding possible amendments 
to its definitions of ``Jail'' and ``Prison,'' and regarding digital 
equity and inclusion will provide an opportunity for small entities, as 
well as other stakeholders, to voice any concerns they may have. The 
Commission will consider any comments small entities file regarding 
these matters as part of its efforts to ensure that consumers of 
calling services for incarcerated people have the information they need 
to make informed purchasing decisions. In particular, it will consider 
whether any concerns small entities raise regarding possible changes to 
the consumer disclose rules and the potential pilot programs as part of 
its overall evaluation of these areas.
    99. The Commission will consider the economic impact on small 
entities, as identified in comments filed in response to document FCC 
22-76 and the IRFA, in reaching its final conclusions and promulgating 
rules in this proceeding.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    100. None.
    101. Initial Paperwork Reduction Act of 1995 Analysis. The Sixth 
Notice of Proposed Rulemaking may contain modified information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). If 
the Commission adopts any modified information collection requirements, 
the Commission will publish another document in the Federal Register 
inviting the public to comment on the requirements, as required by the 
Paperwork Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
the Commission seeks specific comment on how it might further reduce 
the information collection burden for small business concerns with 
fewer than 25 employees.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2022-24597 Filed 11-14-22; 8:45 am]
BILLING CODE 6712-01-P